Vitale v. Comm'r of Internal Revenue , Docket No. 821-72.

• Decision Date: 13 November 1972
• Docket Number: Docket No. 821-72.
• Parties: ANGELO VITALE, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

59 T.C. 246

ANGELO VITALE, PETITIONER

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 821-72.

United States Tax Court

Filed November 13, 1972.

C. John Forge, for the petitioner.

James T. Finlen, for the respondent.

Held: On the facts (1) the Commissioner's notice of deficiency was mailed to petitioner on October 27, 1971; (2) the petition was received more than 90 days after Oct. 27, 1971. Accordingly, the Court lacks jurisdiction.

OPINION

TIETJENS, Judge:

The matter before us is the Commissioner's motion to dismiss on the ground that petitioner failed to file a timely petition with this Court. Evidence was taken at a hearing on the motion held in Kansas City, Mo., on June 6, 1972. The Commissioner determined deficiencies for 1967 and 1968 in the income tax liability of Angelo Vitale, a resident of Kansas City, Mo., in the amounts of $463.73 and $11,576.75, respectively; substantial additions to the tax under sections 6651(a) and 6653(a), I.R.C. 1954,¹ for failure to file a timely return and for negligence or intentional disregard of the rules and regulations respectively were also determined. Since petitioner is a U.S. resident we have no jurisdiction to redetermine these deficiencies if petitioner did not file the petition which we have received within 90 days of the mailing of the statutory notice of deficiency. Sec. 6213(a); Vibro Mfg. Co. v. Commissioner, 312 F.2d 253 (C.A. 2, 1963); Estate of Frank Everest Moffat, 46 T.C. 499 (1966)

We conclude that the petition was filed later than 90 days after the mailing of the statutory notice. It is unlikely that there would have been much doubt about this except for the fact that the postmark on the envelope in which the petition was mailed is not legible.

The petition was received by this Court more than 90 days after October 27, 1971, which is the date we determine below to be the date the statutory notice was mailed. This is not necessarily fatal to petitioner. Sec. 7502(a)(1). Petitioner might have protected himself by using certified mail, or by using certified mail, or by using registered mail and observing section 301.7502-1(c) (2), Proced. & Admin. Regs. Petitioner's lawyer, counsel in this proceeding, did not send the document by certified mail, and although he did send it by registered mail, the sender's receipt was not postmarked by the U.S. postal employee to whom the document was presented. Therefore the postmark date on the envelope would have to be deemed by us the filing date, regardless of the actual mailing date, sec. 301.7502-1(a) and (c)(1), Proced, & Admin. Regs.; Nathaniel A. Denman, 35 T.C. 1140 (1961); and where the postmark is illegible the sender has the burden of proving that the petition was timely postmarked. Sec. 301.7502-1(c)(iii)(a), Proceed. & Admin. Regs.; Alexander Molosh, 45 T.C. 320 (1965), and the cases therein cited.

Counsel for petitioner testified that he personally delivered the petition to the post office on January 24, 1972, the date 89 days after October 27, 1971 (the former date did not fall on a Saturday, Sunday, or legal holiday in the District of Columbia). However the petition was verified on January 25. Counsel also stated on cross-examination that he recalled that it was Tuesday that he mailed the petition; January 25, 1972, fell upon a Tuesday. That the petition was mailed January 25, comports with the fact that counsel did not have a copy of the statutory notice until...